FINANCIAL SERVICES TRIBUNAL
2002 ONFST 3
Decision No. P0116-2000-1
IN THE MATTER OF the Pension Benefits Act, R.S.O. 1990, c. P. 8, as amended by the Financial Services Commission of Ontario Act, 1997 S.O. 1997, c. 28 (the "Act");
AND IN THE MATTER OF a Proposal by the Superintendent of Financial Services (the "Superintendent") to make an order under Section 87 of the Act respecting a request by Mr. Victor Burns relating to the Ontario Public Service Pension Plan, Registration No. 208777;
AND IN THE MATTER OF a Hearing in Accordance with Subsection 89(8) of the Act
B E T W E E N:
ONTARIO PENSION BOARD Applicant
-and-
SUPERINTENDENT OF FINANCIAL SERVICES OF ONTARIO (the “Superintendent”)
-and-
VICTOR BURNS Respondents
BEFORE: Ms. Anne Corbett, Member of the Tribunal and Chair of the Panel Mr. Louis Erlichman, Member of the Tribunal and the Panel Mr. William Forbes, Member of the Tribunal and the Panel
REPRESENTATIONS BY:
For the Ontario Pension Board Mr. Murray Gold Ms. Susan Philpott
For the Superintendent: Ms. Frederika Rotter Ms. Deborah McPhail
For Mr. Victor Burns Mr. David J. Jewitt
HEARING DATES: October 15 and 16, 2001
REASONS FOR DECISION
NATURE OF APPLICATION
The Ontario Pension Board (the "Applicant") requested a hearing before the Financial Services Tribunal in respect of the Notice of Proposal issued by the Superintendent of Financial Services ("Superintendent"). The Notice of Proposal indicated that the Superintendent was proposing to order the Applicant to pay Mr. Victor Burns his full pension benefits, with interest, payable pursuant to Section 24 (11) of Regulation 909 under the Pension Benefits Act retroactive to the date of Mr. Burns' retirement from the Ontario Provincial Police. The Applicant takes the position that the Notice of Proposal should be quashed on the basis that Mr. Burns' employment was not terminated with the Ontario Provincial Police but was deemed to be continued pursuant to Section 80 (3) of the Act as Mr. Burns assumed new employment with the Ottawa-Carleton Police Services Commission on or about the day following his termination of employment with the Ontario Provincial Police and that that new employment was in conjunction with the transfer of part of the police services of the Ontario Provincial Police to the Ottawa-Carleton Police Services Commission.
Both the Superintendent and Mr. Burns contend that Section 80 (3) of the Act does not apply to Mr. Burns.
FACTS
Effective February 28, 1997, Mr. Burns terminated his employment with the Ontario Provincial Police. Prior to that date Mr. Burns was employed as a District Inspector with responsibility for seven (7) of thirteen (13) detachments of the Ontario Provincial Police in the Ottawa area.
Effective January 1, 1995, Bill 143, an Act to Amend Certain Acts related to the Regional Municipality of Ottawa-Carleton and to amend the Education Act in respect of French Language School Boards was passed. It affected police services in the Ottawa-Carleton region. The former Gloucester, Nepean and Ottawa Police Services were amalgamated into the Ottawa-Carleton Regional Police Services effective January 1, 1997. During the period from December 1996 through to July 1999, there was a divestment of police services from the Ontario Provincial Police to the Ottawa-Carleton Regional Police Services.
In connection with the transfer of police services from the Ontario Provincial Police to the Ottawa-Carleton Regional Police Services a transfer protocol was established which governed the transfer of employees between the police services.
Mr. Burns commenced employment as an Inspector with the Ottawa-Carleton Regional Police Services on March 3, 1997. His new employment arrangements were not governed by the transfer protocol but were the result of arrangements made directly between Mr. Burns and the Chief of the Ottawa-Carleton Regional Police Services. Upon commencing employment with the Ottawa-Carleton Regional Police Services, Mr. Burns became a member in OMERS.
At the time that Mr. Burns terminated his employment with the Ontario Provincial Police he had thirty-three (33) years and seven (7) months pension